Webb v. Morgan, McClung & Co.

| Mo. | Mar 15, 1851

Ryland, J.,

delivered the opinion of the court.

The only question arising in this case is, can an assignee to whom a promissory note has been assigned for collection, bring the suit on the note in his name as assignee, under the new statute regulating the “practice in courts of justice?” The appellants who were defendants below contend that the plaintiffs below cannot maintain their action, under the above mentioned statute, because they say that the said plaintiffs were not the party really interested in the suit.

The first section of the 3d art. of said act is as follows : “Every civil action must be prosecuted in the name of the real party in interest, except as otherwise provided in the next section.

“2d sect. An executor or administrator, a trustee of an express trust, or a person expressly authorised by statute, may sue, in his own name, without joining with him the person for whose benefit the suit is prosecuted.

Sect. 3. In case of an assignment of a thing in action, the action by the assignee shall be without prejudice to an off-set, or other defence, existing at the time of, or before notice of the assignment; but this section shall hot apply to bills of exchange, nor to promissory notes for the payment of money expressed on the face thereof, to be for value received, negotiable and payable without defalcation.”

By the act concerning “Bonds and Notes,” passed in 1845. See Rev. Code, 1845; p. 190 — “all bonds and promissory notes for money or property shall he assignable by endorsement on such bond or note, and the assignee may maintain an action thereon in his own name against the obligor, or maker, &c.

There is no doubt that the Legislature did not intend by the new act concerning “practice ;n courts of justice,” to repeal the law of 1845, concerning Bonds and Notes. They well knew that an assignee could sue in his own name; and the 3rd section of the new act above quoted plainly implies the right of an assignee to sue in his own name. But in this case, it is said that the assignees have no interest; they are merely the agents for collection. We consider that the assignment to them creates in them such legal interest, that they thereby become the persons to sue. The assignment passes to them under the law of 1845, the legal title to the note, and make it their duty to sue — and we think the court below acted properly in overruling the defendants’ motion, and in rendering judgment for the plaintiffs.

Whenever the evidence shews the endorsement in assignment of the note or bill of exchange or bond to the plaintiff, that assignment makes such plaintiff the party in legal interest; and authorises the action in his name.

We cannot believe that the Legislature intended that the courts should permit a defendant to come forward with such a.matter of de-fence as is here set up. If he has a valid claim or defence against the original, (Payee,) he can avail himself of it under the statute; see sec. 3, above quoted.

We think the design of the court below most consonant with the principles of law, and best calculated to promote right and justice.

Judge Napton concurring,

it is therefore agreed that the judgment below be affirmed.